ITS NOT TOO LATE IN THE YEAR FOR “CLAIM FORM” CASES: JUDGE ALLOWS APPEAL AND GRANTS CLAIMANT EXTENSION OF TIME TO SERVE THE PARTICULARS OF CLAIM: CPR 3.9 & DENTON DID NOT APPLY
I am grateful to solicitor Chris Topping of Broudie Jackson Canter for sending me a copy of the judgment of HHJ Bird in Brown -v- the Chief Constable of Greater Manchester Police (5th December 2024). The judge allowed an appeal against the…
CLAIM AGAINST ALLEGEDLY DISHONEST EXPERT NOT STRUCK OUT: THESE ISSUES SHOULD BE DETERMINED AT TRIAL
In EUI Ltd (t/a Admiral) v Smith [2024] EWHC 2803 (KB) Mr Justice Griffiths refused an expert’s application to strike out the case against him. He upheld the decision of the Circuit Judge and stated that the issues should go…
COST BITES 188: MAKING A PEREMPTORY ORDER FOLLOWING A FAILURE TO PAY INTERLOCUTORY COSTS: THE NEED FOR THE RESPONDENT TO PROVIDE EVIDENCE
In Ahmad v Ouajjou & Anor [2024] EWHC 2213 (Comm) HHJ Pelling KC found it was appropriate to make a peremptory order following the defendants’ failure to pay interlocutory costs orders. (This decision was considered in Ahmad v Ouajjou & Anor…
NOT A LATE CLAIM FORM CASE TODAY, BUT LATE PARTICULARS OF CLAIM LEAD TO THE ACTION BEING STRUCK OUT
As a change to the almost never ending issues relating to late service of the claim form we have a case about late service of the Particulars of Claim. In Joseph v McFaddens LLP [2024] EWHC 2447 (Ch) Deputy Master…
BRINGING A REPRESENTATIVE ACTION WAS A FLIGHT OF FANCY: ACTION ON BEHALF OF NUMEROUS PASSENGERS STRUCK OUT
In Smyth v British Airways Plc & Anor [2024] EWHC 2173 (KB) Master Davison struck out an action which claimed to be a “representative action” on behalf of thousands (if not millions) of airline passengers. The judge was sceptical about…
STRIKING OUT FOR DELAY: THE DANGERS FOR A COUNTERCLAIMING DEFENDANT IN LETTING SLEEPING DOGS LIE
In Western Avenue Properties Ltd & Anor v SONI & Anor [2024] EWHC 2124 (KB) Master Davison struck out a counterclaim on the grounds of delay. The claim had already been struck out for delay. In these circumstances the principles…
CAN A COURT STRIKE OUT A CASE ON THE GROUNDS THAT THE CLAIMANT HAS NO REAL INTENTION OF PROCEEDING TO TRIAL? IT CAN – BUT NOT IN THIS CASE
In Lloyd v Hayward & Anor [2024] EWHC 2033 (Ch) HHJ Keyser KC (sitting as a Judge of the High Court) considered the question of whether the delay in the progress of an action should lead to it being struck…
IT IS NOT APPROPRIATE TO USE PART 11 WHEN CHALLENGING A TRADE UNION’S RIGHT TO BRING AN ACTION FOR DEFAMATION
In Prospect v Evans [2024] EWHC 1533 (KB) Mrs Justice Steyn held that a challenge to a trade union’s right to bring defamation proceedings should not have been made by using Part 11. Part 11 applications deal with jurisdiction. The…
A SHORT PLEADING POINT: PLEADING FRAUD – A BLAST FROM THE PAST
I can’t think of any other case where this blog has featured a case that was decided prior to the introduction of the Civil Procedure Rules. However the judgment in Rigby v Decorating Den Systems Ltd [1999] EWCA Civ 986…
AN ACTION THAT HAS BEEN “WAREHOUSED” WILL NORMALLY BE STRUCK OUT AS AN ABUSE OF PROCESS: COMPELLING REASONS TO THE CONTRARY ARE REQUIRED
In Watford Control Instruments Ltd v Brown [2024] EWHC 1125 (Ch) Mr Justice Richards struck out the claimants action on the grounds that it had “warehoused” the action for several years and this amounted to an abuse of process. Such…
DEFENCE AND COUNTERCLAIM STRUCK OUT BECAUSE THE DEFENDANT RELIED ON WITHOUT PREJUDICE COMMUNICATIONS
In West v Churchill & Anor [2024] EWHC 940 (Ch) HHJ Keyser KC (sitting as a High Court Judge) struck out a defence and counterclaim that referred to without prejudice negotiations and correspondence. There had been no agreement reached between…
TOO MANY PARTIES CAN INCUR THE COURT’S WRATH: THE DIFFICULTIES IN PLEADING A CASE WHERE THERE ARE MULTIPLE CLAIMANTS
In Niprose Investments Ltd & Ors v Vincents Solicitors Ltd (Professional negligence) [2024] EWHC 801 (Ch) HHJ Hodge KC (sitting as a High Court Judge) considered some of the issues where 35 claimants attempted to plead their claim on one…
LATE SERVICE OF THE PARTICULARS OF CLAIM AND RELIEF FROM SANCTIONS: CLAIMANT ALLOWED TO PURSUE CLAIM AGAINST ONE DEFENDANT BUT NOT THE OTHER: WHAT A DIFFERENCE AN ADMISSION MAKES
In Bangs v FM Conway Ltd & Anor [2024] EWHC 494 (Comm) Mr Justice Jacobs considered the claimant’s application for relief from sanctions when the particulars of claim had been served late. He allowed the claimant’s application against one defendant…
MR BATES AND THE POST OFFICE 4: THE POST OFFICE’S ATTEMPT TO STRIKE OUT THE CLAIMANT’S EVIDENCE AND ITS CLAIM TO HAVE “SUPERNATURAL POWERS”
On March 16 2019 this blog had three separate posts on the Post Office case. The post repeated here gives an example of the Post Office’s extremely “robust” strategy. It attempted to strike out a large part of the claimants’…
ISSUING ON BEHALF OF AN ESTATE WHEN THERE IS NO GRANT OF PROBATE: THE PROCEEDINGS WERE A NULLITY
The judgment of Master Brightwell in The Ali Abdullah Alesayi Will Establishment v Alesayi [2023] EWHC 3150 (Ch) provides a reminder of some important reminder of some important principles when issuing on behalf of the estate of a deceased person. …
THE PARTICULARS OF CLAIM WERE TOO LONG, TOO CONFUSING AND DID NOT COMPLY WITH THE RULES.
In Halsion Limited v St Thomas Street Development Limited [2023] EWHC 2045 (TCC) HHJ Cawson KC, sitting as a High Court Judge, struck out the claimant’s Particulars of Claim. The Particulars were too long and rambling and failed to comply…
CLAIMANT FAILS TO SERVE THE CLAIM FORM PROPERLY: DEFENDANT FAILS TO NOTICE AND APPLIES TO STRIKE OUT ACTION: APPLICATION WAS UNNECCESARY & DEFENDANT NOT AWARDED COSTS
In Johnson v Devon And Cornwall Police & Ors [2023] EWHC 690 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) held that a defendant should have known that the proceedings against it had not been served properly. The…
“GIVEN THE INCOMPETENT WAY THE LITIGATION HAD BEEN CONDUCTED TO DATE”: CIRCUIT JUDGE WAS RIGHT TO REFUSE AND ADJOURNMENT AND RIGHT IN STRIKING OUT THE CLAIM
In Brem v Clark & Anor [2023] EWHC 1358 (KB) Mr Justice Martin Spencer dismissed an appeal against a decision to strike out an action. The claimant’s counsel failed to attend at the hearing, but the judge was correct to…
CLAIMANT’S CONVENTION CLAIM DISMISSED FOLLOWING ATTEMPT TO AMEND AFTER THE EXPIRY OF THE LIMITATION PERIOD
I am grateful to Barrister Katherine Howells for sending me a copy of the judgment in Hallett -v- TUI Airways Limited, a copy of which is available here Approved Judgment Hallett v TUI Airways Limited. The case deals with the…
DEFECTIVE WITNESS STATEMENTS CONSIDERED: THE MAKER OF THE STATEMENT MUST GIVE THE SOURCE OF INFORMATION AND BELIEF
The judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) records it was before “Master Marsh (sitting in retirement). However the Master has lost none of his pre-retirement keenness for ensuring that parties filing witness statements…
THE JUDGE WAS WRONG TO STRIKE OUT A PROPERLY PLEADED CLAIM IN A PERSONAL INJURY CASE: JUDGE’S SHOULD BE ASTUTE TO DEAL WITH APPLICATIONS TO STRIKE OUT WHICH ARE, IN REALITY, APPLICATIONS FOR SUMMARY JUDGMENT
The judgment of Mr Justice Choudhury in Kasongo v CRBE Ltd & Anor [2023] EWCA Civ 557 demonstrates the danger when a defendant makes an application to strike out a statement of case. The judge allowed an appeal where a…
ANOTHER CLAIM FORM CASE – BUT WITH A DIFFERENCE: ACTION STRUCK OUT BECAUSE CLAIM FORM CONTAINED NO FACTS AT ALL
In Free Leisure Ltd (t/a “Cirque Le Soir”) v Peidl And Company Ltd & Anor [2023] EWHC 792 (Comm) Charles Hollander KC, sitting as a High Court judge considered the appropriate course when the “facts” section of the claim form…
DELAY BY THE CLAIMANT WAS NOT “WAREHOUSING” AND DID NOT LEAD TO A STRIKE OUT: A PARTY ALLEGING DELAY WAS ABUSE MUST ACT PROMPTLY
There are several significant aspects to the judgment of Mr Justice Eyre in Morgan Sindall Construction and Infrastructure Ltd v Capita Property and Infrastructure (Structures) Ltd & Anor [2023] EWHC 166 (TCC). Firstly the distinction between proceedings issued for the…
MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT
I am grateful to Express Solicitors for sending me a report of a decision in Oxford County Court relating to the Damages Claim Portal. The claimant had used the Portal to issue against the Crown. The Portal cannot be used…
COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM
In Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 the Court of Appeal rejected the defendant’s appeal, which was an attempt to subvert the principles of Qualified One Way Costs Shifting (“QOCS”). The claimant discontinued the action…
TOO MANY CLAIMANTS SPOIL THE CLAIM FORM: THREE STRIKES … AND YOU’RE OUT
NB THIS DECISION WAS OVERTURNED BY THE DIVISIONAL COURT. SEE THE LATER POST ON THE DECISION HERE. In Abbott & 3,499 Ors v Ministry of Defence [2022] EWHC 1807 (QB) Master Davison rejected the claimant’s arguments that it was permissible…
COURT OF APPEAL OVERTURNS DECISION TO STRIKE OUT “UNMANAGEABLE” COURT PROCEEDINGS
In Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951 the Court of Appeal overturned a decision to strike out a claim. The Court doubted whether an action could ever be described…
FAILURE TO COMPLY WITH THE RULES LEADS TO PARTS OF A CLAIMANT’S WITNESS STATEMENT BEING STRUCK OUT: COMPLY WITH THE RULES – OR ELSE
In Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch) HHJ Paul Matthews, sitting as a judge of the High Court, struck out parts of the claimant’s witness statement due to its failure to comply with the rules. …
WHY YOU SHOULDN’T BANK ON SUMMARY JUDGMENT: THE COURT SHOULD NOT CONDUCT A “MINI TRIAL” ON SUMMARY JUDGMENT APPLICATIONS
In Philipp v Barclays Bank UK Plc [2022] EWCA Civ 318 the Court of Appeal allowed an appeal against an order giving the defendant summary judgment in favour of the defendant bank. The court emphasised that summary judgment applications should…
WHEN A PARTY FILES A WITNESS STATEMENT THAT DOES NOT COMPLY WITH THE RULES: THERE IS NO GOOD REASON AND THE PARTY IN DEFAULT PAYS A PRICE…
In the judgment today in Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch) Mr Nicholas Thompsell (sitting as a Deputy Judge of the High Court) considered the appropriate response to a witness statement that failed…
ACTION STRUCK OUT WHEN CLAIMANT GIVES WRONG ADDRESS ON THE CLAIM FORM
I am grateful to solicitor Hamish Cameron Blackie for sending me a copy of the judgment of HHJ Bloom in Conlon -v- Ringway Infrastructure Services Ltd (County Court at Luton, 2nd December 2021) where the judge struck out an action…
CASE STRUCK OUT DUE TO CLAIMANT’S INACTIVITY: YOU CAN’T “WAREHOUSE” A COURT ACTION
In Alfozan v Quastel Midgen LLP [2022] EWHC 66 (Comm) HHJ Pearce (sitting as a High Court judge) struck out an action on the grounds of the claimant’s delay. The case had been “warehoused” and the claimant had not adduced…
“NO SERIOUS PRIVATE PAYING LITIGANT” WOULD CONTEMPLATE SPENDING £50,000 IN COSTS FOR A £3,000 CLAIM: ACTION SHOULD NEVER HAVE BEEN ISSUED IN THE HIGH COURT
In Johnson v Eastlight Community Homes Ltd [2021] EWHC 3069 (QB) Master Thornett accepted, in large part, a defendant’s application in a case where a claim for £3,000 had been issued in the High Court and the costs claimed by…
WHEN YOU HAVE TWO IDENTICAL ACTIONS ON THE GO AT ONCE: COURT CONSIDERS THIS AN ABUSE OF PROCESS
In Dixon v Santander Asset Finance Plc & Anor [2021] EWHC 1044 (Ch) HHJ Saffman (sitting as a High Court Judge) granted the defendant summary judgment on the basis that the claim against it was clearly statute barred. The judge…
WHEN JUDGE READS A DRAFT STATEMENT AND A FINAL STATEMENT (& THERE ARE SOME IMPORTANT DIFFERENCES): LITIGANT REFUSED PERMISSION TO RELY ON EVIDENCE THAT COULD HAVE BEEN BEFORE THE COURT AT THE ORIGINAL HEARING
The judgment of Mr Justice Francis in Brack v Brack [2020] EWHC 2142 (Fam) is an example of a case where the judge has the opportunity to see a draft statement and a final statement. The judge struck out an…
AN APPLICATION THAT WAS “OPPORTUNISTIC AND WITHOUT MERIT”: NON-PAYMENT OF THE COURT FEE WITHIN EXISTING PROCEEDINGS DOES NOT GIVE RISE TO A LIMITATION DEFENCE: JARNDYCE -v- JARNDYCE CONSIDERED IN THE COURT OF APPEAL
The issue of non-payment, or under-payment, of court fees was considered by the Court of Appeal in the judgment today in Butters & Anor v Hayes [2021] EWCA Civ 252. THE CASE During the course of an action the court…
YOU CANNOT USE A REPLY TO PLEAD MATTERS THAT SHOULD HAVE BEEN IN THE PARTICULARS OF CLAIM
About ten minutes ago I sent off the material for a webinar I am giving tomorrow on drafting statements of case. Inevitably, therefore, a new and relevant case arrived on BAILLI* [the material was subsequently amended to include this] . …
FAILURE TO COMPLY WITH CIVIL PROCEDURE RULES AND PAY CORRECT COURT FEE CAN (BUT DIDN’T) LEAD TO AN ACTION BEING STRUCK OUT
In Udeshi & Ors v Sieratzki [2021] EWHC 213 (Ch) Master Kaye considered an argument that a failure to pay the correct fee, and other breaches of the CPR, should lead to an action being struck out. Given that the…
MORE ON OPINION EVIDENCE IN WITNESS STATEMENTS: DEFENDANT’S STATEMENT LARGELY STRUCK OUT AS AN ABUSE
The judgment in Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin) that was looked at yesterday referred to the earlier case of JD Wetherspoon plc v Harris [2013] 1 WLR 3296. Since that decision pre-dated this blog. I thought it…
STRIKING OUT A MULTI-PARTY CASE AS AN ABUSE OF PROCESS: WHEN CASE MANAGEMENT IS “AKIN TO TRYING TO BUILD A HOUSE OF CARDS IN A WIND TUNNEL”
Returning to the substantive issue in the judgment of Turner J in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC). The judge struck out the claims of 202,600 claimants on the grounds that…
SUMMARY JUDGMENT AND STRIKING OUT: COVID MATTERS ARE A GOOD REASON TO DETERMINE ISSUES NOT DELAY THEM
In TKC London Ltd v Allianz Insurance PLC [2020] EWHC 2710 (Comm) Mr Richard Salter QC (sitting as a High Court Judge) considered the issue of whether issues relating to the COVID pandemic should be a factor in considering a…
CIVIL LITIGATION BRIEF 25 YEARS AGO: A QUARTER OF A CENTURY OF CIVIL PROCEDURE
Nobody knew what a “blog” was 25 years ago. However at that time Civil Litigation Brief did exist, it was a monthly column in the Solicitors Journal. It is interesting to see how much (or how little) matters have moved…
CLAIM FOR DAMAGES STRUCK OUT: APPLICATION TO AMEND REFUSED: CLAIMANT FAILED TO USE THEIR LOAF AS CLAIM IS SLICED…
The judgment of Mrs Justice Jefford in The Leicester Bakery (Holdings) Ltd v Ridge And Partners LLP [2020] EWHC 2430 (TCC) shows the necessity of being able to particularise a claim for damages. What it demonstrates is that, in claims…
WITNESS EVIDENCE AND COUNTER-SCHEDULE STRUCK OUT AS INADMISSIBLE: THE PRINCIPLES APPLIED
In Rahman v Rahman & Ors [2020] EWHC 2392 (Ch) Master Clark struck out part of the defendants’ witness evidence and counter-schedule. The judgment provides a useful summary of when the court will strike out evidence and statements of case….
CASE WOULD NOT HAVE BEEN STRUCK OUT BECAUSE OF THE ABSENCE OF A LETTER BEFORE ACTION AND INCORRECT USE OF THE PART 8 PROCEDURE
In Halal Meat Sellers Committee Ltd & Anor v HMC (UK) Ltd [2020] EWHC 2190 (Comm) the court struck out the claimants’ claim as an abuse of process. It is interesting to note that the court indicated that there were…
PROVING THINGS 178: PROVING PREJUDICE: THE NEED FOR SPECIFIC EVIDENCE
There is another aspect of the Court of Appeal decision in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 that justifies closer examination. That is the court’s observations on the judge’s finding of prejudice. The Court of Appeal…
USING RTA PROTOCOL AND PART 8 PROCEDURE INAPPROPRIATELY DID NOT LEAD TO ACTION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY
The Court of Appeal today gave judgment in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 and overturned the decision to strike out an action because it had been issued inappropriately using the portal and Part 8…
HIGH COURT UPHOLDS DECISION TO STRIKE OUT CLAIMANT’S PERSONAL INJURY ACTION (AND CLAIMANT HAS TO PAY THE COSTS AS WELL)
In Akay v Newcastle University [2020] EWHC 1669 (QB) Mr Justice Lavender upheld an earlier decision that a personal injury action be struck out as an abuse of process. “If it was to be alleged that the judge failed…
ACTION NOT STRUCK OUT BECAUSE ALLEGATIONS OF BAD FAITH AND WILFUL MISCONDUCT NOT FULLY PARTICULARISED
In Palladian Partners LP & Ors v The Republic of Argentina & Anor [2020] EWHC 1946 (Comm) Mrs Justice Cockerill refused to strike out pleadings alleging, bad faith, wilful misconduct and manifest error. This is the second example recently of…
THE STATEMENT OF CASE WOULD NOT HAVE BEEN STRUCK OUT: JUDGE PROVIDES A LESSON IN THE BASIC PRINCIPLES OF PLEADING
In Tejani v Fitzroy Place Residential Ltd & Anor [2020] EWHC 1856 (TCC) Mr Justice Pepperall sent out a clear reminder of the basic purpose of pleading. He rejected an argument by the defendant that a particulars of claim should…
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